SIU Director’s Report - Case # 22-TCI-189
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:- Confidential investigative techniques and procedures used by law enforcement agencies; and
- Information that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- Location information;
- Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
- Other identifiers which are likely to reveal personal information about individuals involved in the investigation.
Personal Health Information Protection Act, 2004
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.Mandate Engaged
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injury of a 24-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injury of a 24-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On July 28, 2022, at 1:08 p.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant. According to the TPS, on July 28, 2022, members of the TPS Emergency Task Force (ETF), as part of a major Greater Toronto Area drug takedown, entered a residence in Brampton on the strength of Controlled Drugs and Substances Act (CDSA) and Criminal Code search warrants. The Complainant was located inside and struggled with police during his arrest, resulting in him sustaining an injury. The Complainant was taken to Trillium Health Partners, Credit Valley Hospital (CVH). At 12:42 p.m., he was diagnosed with a small fracture to one of his ribs.
The Team
Date and time team dispatched: 07/28/2022 at 1:48 p.m.Date and time SIU arrived on scene: 07/28/2022 at 2:26 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
24-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on July 29, 2022.
Civilian Witness (CW)
CW Not interviewed; unable to locateSubject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Not interviewed; notes received and reviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Not interviewed; notes received and reviewed
WO #6 Not interviewed; notes received and reviewed
WO #7 Interviewed
WO #8 Not interviewed; notes received and reviewed
The witness officials were interviewed between August 12, 2022, and September 7, 2022.
Evidence
The Scene
The scene was the basement apartment of a residence in Brampton. The scene was not examined by SIU forensic investigators as there was no evidence sought or anticipated to be present that would further the investigation.
Audio/Video/Photographic Evidence
On July 29, 2022, an SIU investigator met with the Complainant at his residence and took photographs of his injuries, as well as the living-room and bedroom of his basement apartment. Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS and the York Regional Police (YRP) between August 9, 2022, and November 22, 2022:- YRP Initial Officer Reports (x2);
- YRP Prosecution Summary;
- YRP Criminal Code Search Warrant;
- YRP CDSA Search Warrant;
- TPS email regarding involved officers;
- TPS ETF Team Notes;
- TPS Computer-assisted Dispatch Report;
- TPS Notes- WO #2;
- TPS Notes- WO #5;
- TPS Notes- WO #6;
- TPS Notes- WO #8;
- TPS Notes- WO #1;
- TPS Notes- WO #3;
- TPS Notes- WO #4;
- TPS Notes- WO #7;
- TPS Policy - Arrest and Detention;
- TPS Policy - Incident Response (Use of Force - De-Escalation);
- TPS Use of Force Report – the SO; and
- TPS Use of Force Report – WO #2.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - The Complainant’s medical records from CVH.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and a TPS officer who participated in the Complainant’s arrest (WO #2), gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the morning of July 28, 2022, while the Complainant was in bed watching TV with his girlfriend, a team of TPS ETF officers forcibly entered his basement apartment in Brampton. The officers were part of a much larger multi-jurisdictional police operation that saw several search warrants being executed at about the same time in a major weapons and drugs investigation. The Complainant was the target of the search warrant for his address. He was suspected of being in possession of firearms, and had previously been charged for weapons-related offences.
Aware that his residence was being entered by police officers, the Complainant removed himself from the bed and assumed a prone position on the floor. His girlfriend left the bedroom and was arrested in the kitchen area without incident.
The SO was the first to enter the bedroom, followed closely by WO #2. Each officer delivered leg strikes to the Complainant on the floor, after which he was handcuffed and led from the room.
The Complainant was transported to hospital following his arrest and diagnosed with a right rib fracture.
In the morning of July 28, 2022, while the Complainant was in bed watching TV with his girlfriend, a team of TPS ETF officers forcibly entered his basement apartment in Brampton. The officers were part of a much larger multi-jurisdictional police operation that saw several search warrants being executed at about the same time in a major weapons and drugs investigation. The Complainant was the target of the search warrant for his address. He was suspected of being in possession of firearms, and had previously been charged for weapons-related offences.
Aware that his residence was being entered by police officers, the Complainant removed himself from the bed and assumed a prone position on the floor. His girlfriend left the bedroom and was arrested in the kitchen area without incident.
The SO was the first to enter the bedroom, followed closely by WO #2. Each officer delivered leg strikes to the Complainant on the floor, after which he was handcuffed and led from the room.
The Complainant was transported to hospital following his arrest and diagnosed with a right rib fracture.
Relevant Legislation
Section 25(1), Criminal Code -- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by TPS officers on July 28, 2022. One of the arresting officers – the SO – was identified as the subject official in the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
Given what the ETF officers knew of the Complainant, and the existence of a facially valid search warrant in a weapons and drugs investigation, I am satisfied that they were lawfully placed inside the apartment and had grounds to seek his arrest.
There is a version of events proffered in the evidence that the Complainant placed himself on the floor and effectively surrendered when the officer to first enter the bedroom – the SO – stomped on his face and then kicked his rib area.
WO #2, who followed the SO into the room, was present when the officer stomped on the Complainant’s right side as he lay on the floor. He too struck the Complainant at the same time – two stomps to the left elbow and shoulder area – to neutralize what he thought might have been the Complainant reaching for a weapon. According to WO #2, his apprehension arose as the Complainant moved his arms from behind his head to under his body. Being similarly situated at the time, it is plausible to infer that the SO would have had the same apprehension and reacted the same way.
In view of this conflict in the evidence, I am unable to reasonably conclude that the force used by either officer was excessive. It seems at least as likely as the alternate account that WO #2 and the SO used force in the reasonable belief that the Complainant was reaching for a firearm, and that he needed to be immediately deterred from doing so. On this record, it would appear that striking the Complainant with their legs – a couple of times each, on the evidence – was a proportionate response to the exigencies of the moment.
In the result, while I accept that the SO is likely responsible for the Complainant’s fractured rib, I am not satisfied that the injury is attributable to any unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: November 25, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
Given what the ETF officers knew of the Complainant, and the existence of a facially valid search warrant in a weapons and drugs investigation, I am satisfied that they were lawfully placed inside the apartment and had grounds to seek his arrest.
There is a version of events proffered in the evidence that the Complainant placed himself on the floor and effectively surrendered when the officer to first enter the bedroom – the SO – stomped on his face and then kicked his rib area.
WO #2, who followed the SO into the room, was present when the officer stomped on the Complainant’s right side as he lay on the floor. He too struck the Complainant at the same time – two stomps to the left elbow and shoulder area – to neutralize what he thought might have been the Complainant reaching for a weapon. According to WO #2, his apprehension arose as the Complainant moved his arms from behind his head to under his body. Being similarly situated at the time, it is plausible to infer that the SO would have had the same apprehension and reacted the same way.
In view of this conflict in the evidence, I am unable to reasonably conclude that the force used by either officer was excessive. It seems at least as likely as the alternate account that WO #2 and the SO used force in the reasonable belief that the Complainant was reaching for a firearm, and that he needed to be immediately deterred from doing so. On this record, it would appear that striking the Complainant with their legs – a couple of times each, on the evidence – was a proportionate response to the exigencies of the moment.
In the result, while I accept that the SO is likely responsible for the Complainant’s fractured rib, I am not satisfied that the injury is attributable to any unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges. The file is closed.
Date: November 25, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.